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ANNEXATION OF HAWAII. 






REMARKS 





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HON.J.B.FO RAKER, 



OF OHIO, 



IN THE 



SENATE OF THE UNITED STATES, 



JUNE 25 t 1898 




WASHINGTON. 
I898. 



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REMARKS 

OF 

HON. J. B. FORAKER. 



The Senate having under consideration the joint resolution (H. Res. 259) 

Sroviding for the annexation of Hawaii, and Senator Tukle* having the 
oor— 

Mr. TURLE Y. The next point which is made was made by the 
Senator from Ohio [Mr. Foraker], and I believe by the Senator 
from Massachusetts, but I will quote from the Senator from Ohio. 
He first said: 

I am loath to interrupt the Senator, hut I have "been desiring for some 
minutes since he got on this proposition to put a question to him. The ques- 
tion 1 desire to put is this: Would it not be competent for the Congress of the 
United States to prescribe by law certain terms and conditions upon which 
any independent government might come in and become a part of the terri- 
tory of the United States by complying with the terms ^and conditions pre- 
scribed by the Congress of the United States? 

Suppose, for instance, to mate plain what I have in my mind, we should 
provide that any independent people or government, doing what this pre- 
amble recites the people of Hawaii have done, should, upon complying with 
certain conditions, those and others that we might see fit to mate, become a 
part of our territory, they notifying us that they had complied with all the 
terms and conditions, could we not thereupon declare them to bo annexed 
and make them a part of the territory of the United States, and would not 
that be a more competent power for the Congress than it would be for the 
treaty-making power? 

Now, Mr. President. I submit this idea in reply to that propo- 
sition: Certainly there is nothing in the Constitution which 
squints at any power to pass any such law. The only line on this 
subject in the Constitution, outside of that lodging the treaty- 
making power in the Senate and the President, is the provision 
about the admission of new States. This proposition involves the 
idea of a general law, directed to every independent country in 
the world. 

If it is good for one, if it is good for two, it is good for all. If 
the proposition is true, to-morrow Congress could pass a law pro- 
viding that every independent power in the world, any or all of 
them, could become a part of the United States upon complying 
with certain conditions; that the most ignorant population could 
come in on the same terms with the most educated and intelli- 
gent; that the Malays in the Philippine Islands, or these Kanakas 
in Hawaii, or the negroes in Africa, any government that was an 
independent power, could come in on these terms and conditions. 

Mr. FORAKER. Mr. President 

The PRESIDING OFFICER (Mr. Faulkner in the chair). 
Does the Senator from Tennessee yield to the Senator from Ohio? 

Mr. TURLEY. Certainly. 
a3i3 3 



Mr. FORAKER. Will the Senator from Tennessee allow me to 
suggest that the point he is now making will not go to the ques- 
tion of power, but only to the question of policy, about which I 
was not talking when I made the remarks from which he is quot- 
ing. It might be good policy or bad policy in any given case. 

Mr. TURLEY. Now, in reply to the Senator from Ohio, I sub- 
mit that when you are unable to find in the Constitution of the 
United States an express grant of power to do what you are seek- 
ing to accomplish, or, in other words, if a proposition is submitted 
as constitutional and it can not be found expressly within the 
Constitution, or it does not appear to be necessary and inherently 
proper to carry out some expressly granted power, then it is a legit- 
imate argument to see where it leads in order to determine whether 
the framers of the Constitution have intended to vest it where it 
is claimed it has been vested. In other words, I submit that in all 
doubtful questions 

Mr. FORAKER. Will the Senator from Tennessee excuse me 
for interrupting him again? 

Mr. TURLEY. Certainly. 

Mr. FORAKER. I did not mean to express, and I hope the 
Senator did not understand me by anything I said when making 
the remarks which he has quoted to express, an opinion as to 
whether that would be good policy or bad policy. I was simply 
speaking of the question of power and giving that as an illustra- 
tion of what I thought might possibly be done, and constitution- 
ally. It does not follow that because I think that could be consti- 
tutionally done I would advocate it as a good measure. 

Mr. TURLEY. Certainly I did not understand the Senator 
from Ohio as saying that any such proposition would be good 
policy, but I understand him to say to me now that the position 
I am arguing is one of policy, and that what I say throws no light 
on the question of power. I do not think I mistake him on the 
point that my argument is applicable to the question of the policy 
of the idea and not to the question whether the power really exists. 

Now, what I am attempting to reply is, if you are seeking in the 
Constitution some power which is not expressly gran ted or which 
is not clearly granted, in other words, if as a court or as Senators 
here determining upon the constitutionality of the question there 
may be doubt as to whether power exists under the Constitution 
to do certain things, it is a legitimate argument to see where that 
power would lead us to if it exists. In other words, we may 
argue against the existence of the power from the fact that great 
danger and peril would come to the country if such power really 
exists. I mean in all doubtful cases. 

Of course, if it is an expressly granted power there can be no 
question of it; but wherever it is a question of doubt as to whether 
the power exists, if we see that the existence of the power would 
be dangerous, that its exercise would threaten the destruction of 
the country, we may then look to that as a reason for saying the 
framers of the Constitution never intended to vest in any branch 
of the Government the right to exercise such power. 

So I say now that if the question had been asked in the conven- 
tion which framed the Constitution, " Have we invested Congress 
or do we intend to invest Congress with power to pass a law un- 
der which every independent nation existing on the globe can 
come into this compact and into this Government and become in- 
herent parts of it?" the reply would have been in the negative, ' 
that it never entered the minds of the framers of the Constitution 

3513 



that they were investing Congress or any department of the 
Government with the power by any such law as is referred to in 
this proposition to admit into this Union or into this Government 
as component parts of it any existing power in the world. 

Now, I go a step further to the next proposition. The Senator 
from Ohio very frankly admits that if a foreign power were by 
agreement to cede us a part of its territory upon certain terms 
and conditions agreed upon, it would necessarily have to be done 
by treaty. I will read the whole quotation: 

Mr. Foraker. If the Senator will allow me just one word further, I agree 
with almost all he has said; but at the point where I differ from him the dif- 
ference becomes vital. I think that when you make a compact with a foreign 
power it must be in the nature of a treaty, but that contemplates the con- 
tinued existence of the foreign power. Therefore, if a foreign power were 
by agreement to cede to us a part of its territory upon certain terms and 
conditions agreed upon, it would necessarily have to be done by treaty. 

And further on he says: 
In a word — 

In order to understand this proposition, I will read a little from 
what the Senator from Georgia [Mr. Bacon] said: 

Mr. President, I am utterly unable to see the force of that argument. It 
is in either case an agreement by which sovereignty existing over certain 
territory is abandoned, or rather annulled, and by which the sovereignty of 
this country is given to it. Why should the change of sovereignty as to a 
part be the subject-matter of negotiation and the change of sovereignty as to 
the whole be not the subject-matter of negotiation? 

The Senator from Ohio [Mr. Foraker] replied: 

In a word I can answer that. Because there is no continuance of a com- 
pact. The whole thing is at an end by its consummation. 

Now, the idea seems to be this, if I understand it, and ifc is very 
plainly and clearly expressed, that even though the right to be 
gained has its inception in a compact or agreement, still if it 
is not a continuing compact, if, in the language of the Senator, there 
is no continuance of a compact, then it ceases practically to be the 
subject-matter of treaty; in other words, that only those things 
have necessarily to be done by treaty which are done between two 
nations which continue in existence, and where there is a conti- 
nuity of the contract or a continuance of the contract. 

I produced authorities yesterday and discussed the proposition 
that a treaty is simply a contract between two sovereign powers; 
that nations deal with each other by treaty like individuals do by 
contract. It is no objection to the validity of a contract as a con- 
tract, it does not deprive it of its character as a contract, that it 
is consummated in its execution; that there is no continuity in it; 
that it ends when it is made; that it is one act and there is nothing 
further to be done. 

Every deed, every grant where the money is paid, is a contract 
of that sort. There is no continuity in it. There is no continu- 
ance; nothing further to be done. It is ended completely, just as 
the treaty by which Russia conveyed to us Alaska. When the 
money was paid, it was an ended contract, as every executed con- 

Mr. FORAKER. Mr. President 

The PRESIDING OFFICER. Does the Senator from Tennes- 
see vield to the Senator from Ohio? 

Mr. TURLEY. Yes, sir. 

Mr. FORAKER. If the Senator will not be interrupted I 
should like to ask a question. 
::,1) 



6 

I listened with a great deal of interest to his discussion of the 
term "treaty'' and his definition of what is meant by the word 
"treaty." I understood him to define it yesterday, as he has re- 
peated to-day, that a treaty is simply a contract between sover- 
eign powers. He also insisted, as other Senators have done, that 
the treaty is not a treaty until it is consummated. 

Of course everybody agrees with him as to that. The treaty 
that was negotiated between this Government and the Hawaiian 
Republic, therefore, has never become a treaty. It has been sim- 
ply negotiated. It will be a treaty if it shall be ratified, and not 
otherwise. Until the moment of its ratification there is no con- 
tract between Hawaii and the United States. 

Mr. WHITE. Mr. President 

Mr. SPOONER. What of the cession which you say you ac- 
cept? 

Mr. WHITE. That is exactly what I was about to ask. 

Mr. FORAKER. The one referred to in the joint resolution? 
I will come to that in a moment. A great deal has been said, if 
the Senator from Tennessee will not object 

Mr. TURLEY. I do not object. 

Mr. FORAKER. I will take occasion now, as other Senators 
have interrogated me, to make answer to that. 

Mr. TURLEY. I do not object. 

Mr. FORAKER. A great deal has been said about the word 
" cession " being used here. 

Mr. WHITE. It is in the preamble. 

Mr. FORAKER. It might be that in framing this, if I had 
framed it, I would not have used that word, but I see no objection 
to the use of it, used as it has been used. The ' ' said cession," the 
resolution reads, is accepted. What cession? That which is re- 
ferred to in the preamble which immediately precedes, and in the 
preamble the facts are correctly recited, for the preamble recites 
that a treaty has been negotiated; in other words, that, in accord- 
ance with the provision of the constitution of the Hawaiian Re- 
public, the Hawaiian Government has negotiated and done all it 
can do and all that it is necessary for it to do to manifest its will- 
ingness to make an agreement on its part to cede the territory be- 
longing to the Republic of Hawaii. Then follows the resolution, 
and referring to that preamble and to that transaction, it uses 
the expression, "said cession." Nobody can misunderstand that 
language as it is thus employed. 

Mr. LINDSAY. Mr. President 

The PRESIDING OFFICER. Does the Senator from Ohio 
yield to the Senator from Kentucky? 

Mr. FORAKER. Certainly. 

Mr. LINDSAY. If it will not disturb the Senator, I should like 
to present this idea to him. 

Mr. FORAKER. I am answering a question and I hope not to 
get too far away from it. 

Mr. LINDSAY. This will be pertinent, I think, to the question. 

Mr. FORAKER. Very well. 

Mr. LINDSAY. The cession named in the act is the cession 
provided for in the treaty, as I understand it. 

Mr. FORAKER. Yes, sir. 

Mr. LINDSAY. Article 7 of the treaty provides: 

This treaty shall be ratified by the President of the United States, by and 
with the advice and consent of the Senate, on the one part. 
3513 



I wish to ask the Senator whether a joint resolution, concurred 
in by the two Houses but passed through the Senate by less than 
a two-thirds majority, can be treated as equivalent to the ratifica- 
tion of a treaty by the President of the United States, by and with 
the advice and consent of the Senate? 

Mr. FORAKER. It is not precisely the same thing, but the 
legal effect of the whole transaction is necessarily the same, ac- 
cording to the view I entertain of the power of Congress with 
respect to that particular matter, because the result is an absolute 
cession of the territory belonging to the Republic of Hawaii and 
an absolute acceptance of it on the part of the United States. 
Now, I shall show why that is so. 

Mr. LINDSAY. One other question, and then I will not inter- 
rupt the Senator further. 

Mr. FORAKER. Certainly; with pleasure. 

Mr. LINDSAY. After this joint resolution shall have been 
adopted and approved by the President and presented to the 
Hawaiian authorities, I ask the Senator if they will not have a per- 
fect right to refuse to accept the benefit of the joint resolution 
upon the ground that a treaty has not been ratified by the Presi- 
dent, by and with the advice and consent of the Senate of the 
United States? 

Mr. FORAKER. Undoubtedly they would have a right to ig- 
nore all the action that they took previously having reference to 
the negotiation and ratification of the treaty. They could treat 
this whole question de novo and take action with respect to this. 
I do not know that anybody ever contended for the contrary. 

What I am commenting upon is that which the Senator from 
California called my attention to. The employment of the word 
1 ' cession " here is not ambiguous and it is not an inappropriate word 
to employ, because it has reference to something that immediately 
precedes, which is clearly defined, and which is in strict accord- 
ance with the facts. 

Mr. WHITE. Mr. President 

The PRESIDING OFFICER. Does the Senator from Ohio 
yield to the Senator from California? 

Mr. FORAKER. Certainly. 

Mr. WHITE. We all know the Senator from Ohio is distin- 
guished in law as he is in other avocations. I wish to ask him 
whether he does not think a cession means a grant, and whether 
a grant does not presuppose not merely the execution of an ade- 
quate instrument, but its acceptance by the grantee, and if that 
must not be so in the case of a cession? 

Mr. FORAKER. Undoubtedly. I stated when I first touched 
upon this matter that if I had been drafting this resolution I 
might have employed a different word. But what the word ordi- 
narily means is not necessarily what we are to be governed by 
here. We must look at the whole instrument and see what it is 
that the word is intended to mean. When you look at the whole 
instrument the word "cession," as there employed, has reference 
to the preamble, and whether it be a correct description of that 
which the Hawaiian Republic has done or not, it can not mislead 
anybody, because, interpreted in the light of the context, it simply 
means to refer to the fact that the people of Hawaii have done all 
in their power necessary for them to do to manifest to the people 
of the United States a willingness on their part to cede all their 
territory to the United States upon the terms and conditions here 
imposed. 
Sol3 



8 

Now, that is all that word means; all it can be made by anybody 
to mean ; all that it can be claimed that it means. Of course it 
is true that the ordinary interpretation of the word "cession'* 
would imply a consummated transaction— a deed, a bargain, sale, 
conveyance ; but we have to interpret this word according to its 
context. 

Now, coming back to the point where I was when I was inter- 
rupted and addressing myself to the point I wanted to make to 
the Senator from Tennessee, if I recollect correctly I had gotten 
far enough along to call attention to the fact that he had been 
arguing there could not be any treaty or any contract until the 
consummation of it. His contention was that a treaty was simply 
a contract and that there was not a contract until the treaty was 
ratified. That contention is correct. A treaty can not be anything 
but a contract, and there can not be a contract until we approve. 
But, Mr. President, the Senator from Tennessee will not differ 
from me when I say there can be no contract unless there be at 
least two parties to it. 

The very minute that there ceases to be two parties to it there 
is no longer a contract; it is something else; there is no mutuality. 
The Senator and all the other Senators on his side of the question 
have argued that there is nothing here, no cession, no contract, on 
treaty, until this transaction is consummated. Now, I ask Senators 
to state whether or not there is a contract after it has been con- 
summated. I am speaking of the treaty and not of this resolu- 
tion. After this treaty shall have been ratified by the Senate, as 
we were requested by the President of the United States to ratify 
it, will there be any continuing contract? 

No, certainly not; for in the consummation of that transaction 
the Republic of Hawaii ceases to be, and it is an absurdity on the 
face of things to say that there can be a continuing contract and 
that it ought to be a treaty for that reason between the United 
States and a power that is no longer in existence. Therefore it is 
that I say 

Mr. WHITE. Mr. President 

Mr. FORAKER. If the Senator from California will allow me 
just a moment, I say there are cases in which territory may be 
ceded where it is not at all the proper subject-matter, according 
to the view I take of it, for a treaty. 

Mr. WHITE. I desire to inquire of my friend from Ohio whether 
the Committee on Foreign Relations, of which he is a member, 
did not report and earnestly advocate, until within a very short 
period past, the adoption of such a treaty absurdity as that which 
he describes? 

Mr. FORAKER. Mr. President, I did not mean to say that this 
particular case was an absurdity. I should have said there might 
be cases where it would be an absurdity to contend that a cession 
of territory could be acquired only by treaty. But I will say to 
the Senator from California that I never did have the idea that 
this was a proper subject-matter for treaty, and I will tell you 
why. Let me put a case. When we took the Louisiana purchase 
by treaty, we did not take all the territory of France, but only a 
certain designated portion of it — that in this country, and that 
described by the treaty. 

If we had taken that territory without anything more being 

stipulated for than merely the payment of a certain sum of money, 

the whole transaction would have been consummated when the 

treaty was signed and the money was paid, and that would have 

3513 "" 



9 

been the end of it. That might have been done, I contend, by an 
offer on the part of France to cede to us that territory and an 
acceptance on the part of the Government of the United States 
and the appropriation of the money by the Congress of the United 
States and the payment of that money. That would have closed 
it all. 

Mr. PLATT of Connecticut. Mr. President 

Mr. FORAKER. But, if you will allow me just a moment, 
there was something else in that treaty. Certain rights were pre- 
served to the people living in that territory, and we stipulated 
that those rights should be preserved to them. Therefore, there 
was a continuing obligation, and there were two contracting 
parties continuing after the consummation of the transaction, the 
one to enforce the transaction as against the other. That was a 
case of a continuing contract. It was a proper case for a treaty. 
It could not have been anything else, having that continuing 
obligation, except only a case of treaty. 

Now, suppose another case. Suppose England were to-day to 
offer to cede to the United States the Bermuda Islands for the pay- 
ment of a stipulated sum of money and that was all there was of 
it. Suppose she were to say to us. in a proper way, "Pay us 
$5,000,000 and take those islands." I think we could take them, 
and take them constitutionally, if we would simply say, "Here is 
your money; we accept your offer." It would not have to be by 
treaty, although there would be two parties remaining in exist- 
ence to the transaction to enforce the contract, if there were any 
contract to enforce or anything to be enforced. 

But suppose that instead of saying, "Take these islands for so 
much money, cash down," England should say, " We propose that 
you shall take them for so much money, but you shall guarantee 
to us the enjoyment of a coaling station, which we reserve, and 
guarantee to us certain other rights in these islands which here- 
tofore we have enjoyed," and suppose we had accepted her offer 
upon those terms; that would of necessity be the subject-matter 
for a treaty, because, after the consummation of the contract 
by the signing of it, there would remain two existing parties to 
it, one to enforce it against the other, and there would remain 
certain rights and conditions upon which they had stipulated. It 
could not be anything else than the subject-matter of a treaty. 

But this is a wholly different case. Here comes the Republic 
of Hawaii and says: "We are authorized by the constitution of 
our Government to enter into a treaty for the cession of these 
islands to the United States. We have entered into such a treaty 
upon our part; here it is; we propose it; we offer it to you. Will 
you ratify it?" 

Mr. WHITE. Will the Senator from Ohio permit me to ask 
him whether there can be a treaty unless both parties have agreed 
to it, and whether, therefore, the provisions of the Hawaiian con- 
stitution have been to any extent complied with? 

Mr. FORAKER. I will answer the Senator from California at 
as full length as he desires if he will only let me finish the propo- 
sition which I was about to put. 

The Hawaiian Republic comes and says not that " we are willing 
to cede to you one of our group of islands in order that you may 
make a coaling station there;" not that " we are willing to cede to 
you a part of our territory for some stipulated purpose and upon 
certain stipulated conditions;" but she says, " We come and we 
a5i3 



10 

give to you all our territory, and upon your acceptance of this 
proposition we cease absolutely and forever to be." 

Mr. President, there is not any contract, and, therefore, no 
treaty, until that proposition has been accepted and ratified by 
a two- thirds vote of the Senate— until that moment there is abso- 
lutely nothing that has any legal effect or binding force whatso- 
ever upon anybody. 

Is there anything in the nature of a treaty remaining after its 
acceptance? There are two parties to a contract necessarily. Can 
there be two parties- when only one party is still in existence? The 
Hawaiian Republic, according to this proposition, ceases to exist 
the very moment this transaction is consummated. In the con- 
summation of it one party perishes. 

Therefore, Mr. President, there is not any contract remaining; 
and, according to the definition insisted upon by Senators who are 
arguing here in opposition, there is no treaty, for they tell us with 
grave emphasis that a treaty is a contract. That is true; but you 
can not have a contract, and therefore you can not have a treaty, 
unless you have two parties to it. The very moment you destroy 
one of the parties your treaty is gone, your contract is gone. But 
suppose now within a year after this treaty, if it should be rati- 
fied and would be consummated — suppose within a year after its 
ratification we should refuse to pay the money or do something 
else that it is stipulated we are to do upon the consummation of 
that transaction, would there be anybody in existence to compel 
us to do it? 

The Republic of Hawaii would be no longer in existence; the 
Republic of Hawaii, with all the machinery of government, per- 
ishes the very minute this transaction is consummated, and the 
people of Hawaii become subjects of the United States; they be- 
come merged with us; they cast in their lot with us; they can not 
call us to account; it is our common obligation, and they treat 
with us, relying that we will act in good faith, and they take the 
risk of that. There would be a treaty, an executed instrument, 
but no longer in existence except only as a consummated trans- 
action, because there would be nobody to enforce the provisions 
of it. 

Therefore it is, Mr. President, that I say with respect to this 
matter of acquiring territory that there are cases where of neces- 
sity, it seems to me, the acquisition should be by treaty, and there 
are cases— and this is one of them— where the acquisition should 
be by a legislative act of Congress. I see no difficulty about the 
acquisition of the territory of Hawaii in this way for the reasons 
I have undertaken to state. 

I have occupied so much of the time of the Senator from Ten- 
nessee that I owe him an apology. I did not think I would inter- 
rupt him to this extent, and would not have done so had not other 
Senators joined in with interrogatories. 

Mr. TURLEY. I am glad to yield to the Senator. 

Mr. ALLEN. Will the Senator permit me to ask him where 
he gets his constitutional power to annex by a joint resolution? 

Mr. FORAKER. I will ask the Senator from Nebraska where 
he gets his constitutional power to annex by treaty? The Consti- 
tution of the United States is silent on that subject. What does 
the Constitution of the United States say about the annexation of 
territory? Not one word. It is one of the implied powers; and 
I contend that it is inherent. But Senators here take exception 
to that, and say this is a Government of limited powers; that the 

3513 



11 

organic law of this country is the Constitution made by the peo- 
ple thereof; and they say the General Government has no power 
except only that which is delegated. 

Pass by, for the sake of argument, the proposition that it is an 
inherent power of our sovereignty, as it is of sovereignty generally, 
and I answer the Senator that it is included within the implied 
powers. The Congress of the United States is especially empow- 
ered to promote the general welfare. If the acquisition of an 
island in the sea be necessary to the promotion of our general 
welfare, Congress is expressly endowed by the Constitution with 
power to acquire it. 

It is not necessary that I should speak about the war power. I 
do not rest my purpose to vote for this acquisition upon anything 
connected with the war. I was just as unequivocally and un- 
qualifiedly for the acquisition of Hawaii a year ago or ten years 
ago as I am now. The war has but developed the necessity which 
those favoring the acquisition of Hawaii foresaw years ago would 
be developed whenever we might come to such a time as we have 
now reached, when we are in war, and when we are required to 
keep a navy in the Pacific in order that we may protect our in- 
terests. 

So I say, Mr. President, if the Congress of the United States 
sees fit, in the exercise of her power to promote the general wel- 
fare, to annex this island or any other, it is competent for Con- 
gress to do so. 

Mr. ALLEN. Then I will ask the Senator another question, 
with his permission 

Mr. FORAKER. I will say I mean in this kind of a case, with 
the limitations I stated a while ago. 

Mr. ALLEN. Have we the power to deal with any foreign 
nation except by treaty? 

Mr. FORAKER. I think so, undoubtedly. 

Mr. ALLEN. I think we have not. 

Mr. FORAKER. There is no provision in the Constitution 
which says we can not deal with other nations otherwise than by 
treaty. 

Mr. ALLEN. That is not the question. The question is 
whether we have the power to do it. 

Mr. FORAKER. The Supreme Court of the United States held 
that there was such a power under the reciprocity clause of the 
McKinley Act 

Mr. ALLEN. That was by treaty. 

Mr. FORAKER. It was not by treaty. 

Mr. ALLEN. Certainly it was. 

Mr. FORAKER. No; we simply provided by law that when- 
ever the President of the United States should ascertain a certain 
fact, he then might make a certain declaration which would 
govern the rates of duty on imports from certain countries. 
There was no treaty about it. 

Mr. ALLEN. We authorized the President of the United 
States to enter into a treaty by reciprocity. 

Mr. FORAKER. But the Senate did not ratify it, and the Presi- 
dent did not enter into any treaty. He simply ascertained certain 
facts. The Supreme Court of the United States held that it was 
constitutional for Congress to so provide, because it was only an 
exercise of administrative power, and the President was engaged 
only in administrative acts when he ascertained those facts. 

Mr. ALLEN. Congress authorized the President to consum- 

3513 



12 

mate certain things if he found the existence of certain facts. 
The act of Congress, together with the act of the President, made 
a treaty. 

Mr. FORAKER. But the House did not join in it except to 
help make the law. The Senator was talking about a treaty which 
the Senate ratified. The Senator from Nebraska, if he will stop 
and think for a minute, will see that the suggestion involved in 
his interrogatory is not at all tenable, not only in that case, but 
in many others, doubtless. 

Mr. ALLEN. I can not myself conceive of an instance where 
we can deal with another nation involving the question of juris- 
diction or territory independent of the methods of a treaty. 

Mr. FORAKER. We did so deal in the case I put. I do not 
think of any others now, but there are doubtless others, and I will 
try to think of some of them by the next session of the Senate. 

But, however that may be, this is a case where, if I am right in 
the view I have undertaken to express, it is not proper to deal 
with it by treaty, at least not so proper as to deal with it by an 
act of Congress. 

When I so express myself as to indicate that I think it might 
in some sense be proper to deal with it by treaty, I want to be 
understood. The explanation is this: When they undertake to 
negotiate a treaty on the other side, and we join with them in 
agreeing to a treaty, and it is submitted to the legislative branch 
yonder and to the Senate here, and is ratified and becomes a treaty, 
although it may not be the proper subject-matter of a treaty, it 
amounts to the same thing in legal effect as legislation, because 
it is the expression of a willingness and the offer on their side to 
make a cession and a willingness and an actual acceptance on 
our part of that which has been offered. 

That is all there is in the legislative act, and the one is there- 
fore the equivalent of the other in ultimate results. I think it is 
more regular to do it as we are now proposing to do it than by 
treaty, because, as I say, you can not have a treaty without having 
a contract, and you can not have a contract without having two 
parties to it. 

Mr. ALLEN. That is true. 

Mr. FORAKER. And if one party disappears on the signing 
of the contract you no longer have a contract. 

Mr. WHITE. What becomes of it? 

Mr. ALLEN. There are two parties to the contract up to the 
moment of its execution. 

Mr. FORAKER. But there is no contract until it is executed. 

Mr. ALLEN. Very well; the moment the contract is signed 
and delivered it is an executed contract. 

Mr. FORAKER. But one party is dead and the contract can 
not continue as the term " treaty" implies. 

Mr. ALLEN. Very well; but that party did not die until after 
the delivery of the contract. 

Mr. FORAKER. Suppose you do not pay the money, who will 
there be to enforce payment? The people of Hawaii become 
merged into the United States. 

Mr. ALLEN. What is true of a treaty with the United States 
is true of any treaty. 

Mr. FORAKER. No; it is not true of any treaty, because 
when the term "treaty" is properly employed it has relation to a 
continuing contract between sovereignties— sovereignties which 
will exist after the contract. 

3513 



13 

Mr. ALLEN". Not necessarily. 

Mr. FORAKER. As in the case I undertook to put before, as 
an illustration, of England ceding to us the Bermudas. She 
would part with a portion of her territory by treaty. That would 
be by contract, and she would remain in existence to execute and 
enforce the contract according to its terms and provisions, if we 
did not. 

Mr. ALLEN. But the fact that one party may die after the 
execution of the contract does not change the binding force of the 
contract. 

Mr. FORAKER. What I wanted to say to the Senator, and what 
I have been trying to say all the while, is that while you can legiti- 
mately annex these islands by what we call a treaty, yet you can 
just as legitimately do it, and more appropriately do it, by an act 
of Congress, by a joint resolution. You can do it more appro- 
priately, because, in the first instance, when you undertake to do 
it by treaty the transaction amounts to nothing more than a tender 
on the part of one side and an acceptance on the part of the other, 
and that is all there is in the legislation that we are now consid- 
ering. 

Mr. ALLEN". That is a ground I contest seriously. 

Mr. FORAKER. Allow me to say further to the Senator, I 
wanted to finish the answer to the other question. 

Mr. ALLEN. I should like to say this, that I have not anymore 
doubt about the lack of power to annex the Hawaiian Islands — 
the lack of constitutional power outside of treaty methods or reg- 
ulations — than I have of my existence,- not the slightest. It is 
only an indirect way of undertaking to destroy the necessity of 
having a two-thirds majority for a treaty in this Chamber. 

Mr. FORAKER. Mr. President, whatever may be the purpose, 
the Senator can have any interpretation of that he wants; that is 
not what I am talking about. If we had two-thirds, no doubt 
the treaty would have been ratified; but from the beginning, as I 
have been contending throughout this debate whenever I have 
taken occasion to say anything at all, I have contended that it is 
more appropriate to do this by legislation, for the reasons I have 
indicated. 

Mr. Spooner rose. 

Mr. FORAKER. I hope the Senator from Wisconsin will wait 
until I answer the Senator from Nebraska. I shall be glad to 
answer the Senator from Wisconsin or anybody else if the Sena- 
tor from Tennessee will allow me. This is one of those questions 
I have convictions about. They may be wrong, but I have them 
and I have my reasons for them, and nobody can ask me any ques- 
tion which I can not at least undertake to answer and give the 
reason why I entertain that opinion. 

Senators talkabout it beingunconstitutional to annex except only 
by treaty, as though the Constitution of the United States had pro- 
vided that there should be annexation by treaty. Mr. President, 
the Constitution of the United States is silent on the question of 
the annexation of territory. It does not seem to have entered 
into the minds of the framers of the Constitution to put into that 
instrument any express provision on that subject. They con- 
tented themselves, as they wisely did with other subjects, in 
regard to this subject with a general provision. They gave to 
Congress the power to promote the general welfare, and that car- 
ries along all the implied powers essential to the consummation of 
that purpose. 

3513 



14 

When they came to the treaty-making power they did not say 
in the Constitution what should be the subject-matter of a treaty. 
They simply said that treaties might be negotiated by the Presi- 
dent, subject to ratification by the^Senate; they did not say what 
we should treat about, and I agree with Senators on the other 
side that a treaty is a contract. You can not have a contract 
unless you have two parties to it, and you do not have any con- 
tract — that has been your contention throughout— until the treaty 
has been signed on both sides. The very minute that is done one 
of the parties is gone, and there is no continuing contract. There- 
fore it is simply a cession on their part and an acceptance on 
ours, and it might be done just as well by legislation as otherwise. 

Mr. CLAY. I understood the Senator to say that a treaty was 
a contract which required two parties 

Mr. FORAKER. At least two. 

Mr. CLAY. Two parties or more; and if we accepted this ter- 
ritory one party was done away with, and therefore this is not a 
treaty, and that we could acquire this territory by legislation in- 
stead of by a treaty. 

Now, I should like to ask the Senator, if that be true, is not his 
position simply this: That if we treat with the Government of 
those islands for a part of the islands, they reserving the balance 
of them, then it would be a treaty and it would require a treaty 
to acquire that territory; in other words, if we simply take a part 
of the country, then a treaty is necessary to acquire it; but if we 
take the whole of it, then it requires simply legislation. Is that 
the position of the Senator from Ohio? 

Mr. FORAKER. I stated that position here without any quali- 
fication in that way a few days ago when engaged in a colloquy 
with the senior Senator from Georgia [Mr. Bacon] . I want to 
qualify it, as I should have done at the time, to this extent: 
There may be cases, as I have already illustrated in the remarks 
I have been making now, where it is not necessarily the subject- 
matter of a treaty to accept a part of the territory of a foreign 
country, but in most cases it would be, and I illustrated that — the 
Senator was not here, and I will be pardoned for repeating the 
illustration— by supposing that England were to-day to offer to 
cede to us the Bermuda Islands 

Mr. CLAY. Or Canada. 

Mr. FORAKER. Or anything. Suppose she would offer to 
cede to us one of her islands in the sea for a stipulated sum of 
money and the Congress of the United States, or the President of 
the United States, representing both, would signify our willing- 
ness to accept and we should appropriate the money and pay it, 
it would not be necessary to have any treaty about it, I apprehend. 

There is nothing in the Constitution which requires a treaty. 
It is a tender on one side and an acceptance on the other, but if, 
instead of making it in that simple way, she were to tender to us 
one of those islands for so much money, saying: "I will give you 
the island, subject, however, to the right, which I reserve, and 
which you guarantee to me for the enjoyment through all time 
to come, of a coaling station," or of some other right or privilege 
there, where she has been heretofore supreme, and we were to 
accept the cession subject to the terms and conditions, there would 
be a continuing obligation, and there would be two continuing 
contracting parties, one of which could enforce it against the 
other, and that would of necessity, as it seems to me, be a proper 

3513 



15 

case for a treaty, and not a case for acceptance by an act of 
Congress. 

But that is not this case, and I want to distinguish this case 
from that. I say, as a broad proposition, that the Congress of 
the United States has power expressly given to it to promote the 
general welfare, and if we deem it a promotion of the general wel- 
fare to acquire any island of the sea that has its own govern- 
ment — but I will take the case before us — if we deem it to be a 
promotion of the general welfare to accept the cession from the 
Republic of Hawaii of all its territory, one of the conditions being 
that the Republic of Hawaii ceases to be, it is not a proper case 
for a treaty, for the very minute the treaty is consummated there 
is no treaty — there is no contract, for one of the contracting parties 
is politically dead and gone. 

Mr. ALLEN. Will the Senator permit me again a moment? 

The PRESIDING OFFICER. Does the Senator from Ohio 
yield? 

Mr. FORAKER. I yield by the permission of the Senator from 
Tennessee [Mr. Tl t rley], who is entitled to the floor. 

Mr. ALLEN. I beg the Senator's pardon. This resolution re- 
cites in the preamble that ''the Republic of Hawaii having, in 
due form, signified its consent " for the cession of its sovereignty. 
Then it resolves: 

That said cession is accepted, ratified, and confirmed. 

Is not that a treaty, if the joint resolution passes? 

Mr. FORAKER. If it is, then all the objections which have 
been urged to this resolution fall to the ground, for the objectors 
say they would not object if it was a treaty. I am assuming, for 
the sake of this argument, that their objections are well taken, 
that it is not a treaty, but a joint resolution or an act of Congress. 
I have said it is equivalent to a treaty. 

Mr. ALLEN. What I want to call the attention of the Senator 
to is this, that it recognizes the existence of two parties to this 
transaction, the Republic of Hawaii on the one hand and the 
Government of the United States upon the other, and the neces- 
sity of the consent of both of these parties to annexation. What is 
that contract, treaty, or stipulation between these sovereigns? 

Mr. FORAKER. With that question I am not concerned. 

Mr. ALLEN. I think the Senator ought to be concerned. 

Mr. FORAKER. I am perfectly willing to be concerned in 
order that I may accommodate the Sen ator from Nebraska. What 
I meant to say was — not to cavalierly dismiss the question the 
Senator would ask — the character of my argument does not in- 
volve a consideration of that matter. 

The question before us is whether it is competent to acquire this 
territory by act of Congress, it being conceded that it would be 
competent, as I understand it is conceded to acquire it by treaty. 
I have said I think it would be competent to acquire it either way, 
and I explained why. But I have said also that I think it would 
be more appropriate to acquire it by joint resolution or by bill, by 
act of Congress, as we are now proposing to acquire it, than by 
treaty, for the reasons I have given. 

It is true that the joint resolution recites that the Republic of 
Hawaii have indicated a willingness to make a cession of that ter- 
ritory. We do not say they have ceded it. 

Mr. ALLEN. Yes. 

3513 



16 

Mr. FORAKER. Let us see if we do. I interpreted that word 
a while ago, but I think the Senator from Nebraska was not in 
the Chamber at the time. Let me read the whole of it, so that it 
may go into the Record, and so that what we are saying may be 
understood: 

Joint resolution to provide for annexing the Hawaiian Islands to the United 

States. 

Whereas the Government of the Republic of Hawaii having, in due form, 
signified its consent, in the manner provided by its constitution— 

That is true, is it not? — 

to cede absolutely and without reserve to the United States of America all 
rights of sovereignty of whatsoever kind in and over the Hawaiian Islands 
and their dependencies, and also to cede and transfer to the United States 
the absolute fee and ownership of all public, government, or crown lands, 
public buildings or edifices, ports, harbors, military equipment, and all other 
public property of every kind and description belonging to the Government 
of the Hawaiian Islands, together with every right and appurtenance there- 
unto appertaining: Therefore, 

Resolved by the Senate and House of Representatives of the United States of 
America in Congress assembled, That said cession is accepted, etc. 

Now, what I say is that while the word "cession" ordinarily 
would imply that a cession had been actually made, that the deed 
had been signed, that it was in full force and effect, you must 
construe the word ' ' cession " as there employed in the light of 
the context it refers to, the preamble; and when you refer to the 
preamble you see the word "cession" properly interpreted means 
nothing more as here used than a declaration on our part that we 
will accept the tender which they have expressed a willingness 
to make. Whether the word was appropriately used or not, that 
is what it means of necessity. 

Mr. ALLEN. When we pass this resolution and it becomes a 
law, the transaction is consummated except the delivery of the 
property. 

Mr. FORAKER. It would have to be accepted on the other 
side. This is not the ratification of a treaty. We can not by a 
joint resolution annex Hawaii. 

Mr. ALLEN. But the joint resolution says so. 

Mr. FORAKER. We can recite the fact that they have mani- 
fested a willingness, as shown by the treaty which we had in 
mind when that joint resolution was drafted, to make a cession 
to us; but when we do not ratify the treaty, but do something 
else, namely, pass a joint resolution, the transaction is not con- 
summated until they agree to it. 

Mr. ALLEN. Will the Senator permit me a word further? 

Mr. FORAKER. Yes. 

Mr. ALLEN. The joint resolution reads: 

That said cession is accepted, ratified, and confirmed, and that the said Ha- 
waiian Islands and their dependencies be, and they are hereby, annexed as a 
part of the territory of the United States and are subject to the sovereign 
dominion thereof, and that all and singular the property and rights herein- 
before mentioned are vested in the United States of America. 

Mr. FORAKER. I say the whole phrase must be interpreted, 
as I said a while ago, in the light of the preamble. The language of 
the resolution refers to the preamble; and what is already recited 
in the preamble? Not a cession actually made, but a willingness 
to make a cession, an expressed, manifest desire that they should 
be annexed to the United States, and that we are willing to accept 
them. 

I admit that ordinarily the language would go further than 
that, but you must interpret it in the light of the preamble. I 

3513 



17 

say it is not a consummated transaction; it does not seem so to 
me, at any rate, when we simply pass this resolution, because we 
can not by a resolution affect the territories of other countries 
without their consent. 

Mr. ALLEN. If I make a written proposition to transfer to 
the Senator certain property for a certain consideration and he 
accepts that in writing, is not that a consummated contract except 
so far as the mere fact of delivery is concerned? 

Mr. FORAKER. Yes, it is. 

Mr. ALLEN. Very well. When the Hawaiian Government, 
without any restriction or proviso, say they transfer their sov- 
ereignty to us, and we say we accept the transfer and thereby 
assume jurisdiction over that property, is not that a consummated 
contract? 

Mr. FORAKER. I say this in regard to that, if the Senator 
from Nebraska will allow me, that they have made a tender to us. 
That is consummated upon our unqualified acceptance of it; but 
the recital of the preamble is only that they have manifested this 
willingness: but if this resolution goes to the extent that the Sena- 
tor from Nebraska contends, I certainly do not object to it. I 
should be glad if the transaction were closed by the mere passing 
of this resolution. It may be possible that that may be the con- 
struction of it, and, if so, I would be pleased. 

Mr. ALLEN. The question I regard as of the most importance 
is this: The proffered cession by the Hawaiian Government and 
the passage of this resolution recognize two parties to the trans- 
action. Is not that correct? 

Mr. FORAKER. Certainly. 

Mr. ALLEN. Now, suppose one of the parties dies absolutely 
on the passage of this law as completely as by an ordinary treaty? 

Mr. FORAKER. Certainly; and for that reason and because 
the whole transaction is ended I say it ought to be by act of Con- 
gress instead of by treaty. 

Mr. ALLEN, if one of the parties dies by virtue of the passage 
of the joint resolution, why should we adopt this form? 

Mr. FORAKER. We ought to adopt this form, as I have been 
trying to explain all the while, because, in my judgment, it is 
better to make a contract by legislation for the acquisition of the 
Hawaiian Islands than by a treaty, which is not, rightly consid- 
ered, a contract executed by its consummation, but a continuing 
contract. 

Mr. ALLEN. Not necessarily so. 

Mr. FORAKER. I think it is necessarily so, or, at least, more 
properly so. Take the case I put a while ago of a cession by Eng- 
land to this country of an island, with the reservation of certain 
rights which we guarantee to preserve for her and protect her in 
the enjoyment of. That is a case for a treaty, because there is 
an existing contract which is to continue through years, and 
there are two parties to it. If it is a transaction that is consum- 
mated by merely signing the documentary evidence of it, I do not 
think it is necessary to have it by treaty. 

Mr. ALLEN. I wish to say that there can be no force in what 
the Senator says, if he will permit me, on this proposition, because 
the Hawaiian Republic dies as quickly and as effectively by the 
passage of this resolution as by the adoption of the treaty. 

Mr. FORAKER. Certainly; that is what I claim. It dies, no 
matter which way you consummate it; and because it dies alike 
in both cases, this is the preferable way. 

3513-2 



18 

Mr. ALLEN. Then, why should we throw aside all the tradi- 
tions of our Government and all the precedents and undertake to 
avoid the constitutional objections of the necessity of two-thirds 
to ratify a treaty and adopt this resolution by a majority? 

Mr. FORAKER. I say you do not throw away any tradition, 
nor do you throw away any precedent; on the contrary, you con- 
form to the precedents in so far as precedent has anything at all 
to do with it. I know the Senator from Georgia [Mr. Bacon] 
made a very able argument the other day to distinguish between 
the acquisition of Texas and the annexation of the Hawaiian Re- 
public, the one being the admission of a State into the Union and 
the other the admission of territory, but in no case similar to this 
has it been held that you could not annex by statute or by joint 
resolution, because we have never had any such case. Then why 
should Senators talk about precedents and traditions? 

Mr. ALLEN. I submit to the Senator that the question was 
submitted to a popular vote of the people of Texas. 

Mr. FORAKER. If that is the point of objection, we are not 
talking about that. I have heard a great deal said about the peo- 
ple of Hawaii being consulted on this matter and about the in- 
iquities of this thing on that account; that we should order a 
plebiscite and take the sentiment of the people there. Why, Mr. 
President, Senators who manifest such concern about the people 
of Hawaii being consulted about this matter seem to have over- 
looked the fact that the people of Hawaii have never in all their 
history been consulted in respect to the character of their govern- 
ment. They adopted a constitution in 1840, the first they ever 
had. Until that time they had an unlimited monarchy. 

How did they get that constitution? The King simply promul- 
gated it. Nobody was consulted. In 1852, when that constitu- 
tion was changed, the people were not consulted. The King then 
simply promulgated an amended constitution. In 1864 they had 
the same thing over again; in 1887 the same thing again, and in 1893 
Queen Liliuokalani was proceeding to do the same thing, and 
that precipitated the rebellion of that time. 

Mr. WHITE. Mr. President 

Mr. FORAKER. Let me say further, before I conclude, that 
her predecessor had been elected by a legislative body, which con- 
sisted, I believe, of thirty or forty members. He had a majority 
of the legislative body, a very large majority, but when he was 
elected, the people, whom we are told must be consulted in all 
these things, rose in a riot; they had anarchy, they broke into the 
Government house, and undertook to murder the man who had 
been elected to be their King; and why and how was murder pre- 
vented? 

Mr. President, it was prevented by the marines of two United 
States ships, which happened to be there in the harbor, being 
landed and being marched up to the Government house, taking 
possession, holding it for ten days, until that King who had been 
elected without any consultation of the people could be firmly 
established upon the throne he had taken. This talk about con- 
sulting the people of Hawaii is unusual in two respects. 

The idea that our Government should go behind the Govern- 
ment of Hawaii in order to consult the citizens of that Republic is 
a thing unheard of in international law and diplomacy, and in the 
second place it is an extraordinary manifestation of interest in the 
suffrage rights of a people who never had any suffrage rights, 
who never were consulted in any case. 

3513 



19 

Mr. ALLEN. Does the Senator hold to the doctrine that the 
legislative and executive power of the Hawaiian Islands can trans- 
fer the sovereignty of that power and destroy its Government 
without consulting the people? 

Mr. FORAKER. 1 hold that there is a Government in Hawaii, 
and that Government is called the Republic of Hawaii. It is ac- 
knowledged to be the lawful Government and the only Govern- 
ment in the islands of Hawaii, acknowledged not only by this 
Government, but by all the governments of the world that have 
acted in the matter at all, recognized as the true and lawful Gov- 
ernment of the islands of Hawaii, and I say it is competent for 
that Government to act. 

It is not for us to look how it was established, although I have 
no hesitation to look at that. I find no trouble about that. When 
that Government thus recognized sees fit to enter into a treaty 
with us, it would be an extraordinary thing if we were to under- 
take to consult the people behind it in order to see whether or not 
they were willing that their constituted authorities should make 
the kind of treaty they have proposed. 

Mr. ALLEN. *Then the Senator holds to the doctrine that the 
legislative branch of the Government, or any branch, or all com- 
bined, who are the agents of the Government to carry out its 
purpose, may lawfully and constitutionally overturn and destroy 
that of which they are the agents? 

Mr. FORAKER. Unquestionably, when they are authorized 
to do so; and they are authorized by the constitution of Hawaii 
to do that very thing. 

Mr. ALLEN. But it was established during a revolution. 

Mr. FORAKER. Suppose it was. Is it not the lawful govern- 
ment? What was the revolution in Hawaii? There was not any- 
thing done in connection with the revolution that you and I and 
every Senator would not have joined in doing if we had been 
there. 

Mr. BACON. I beg to enter a disclaimer for myself. 

Mr. GAFFER Y. Mr. President 

Mr. PETTIGREW. There is not a Senator on this floor who 
would be a party to such a transaction, and I will show that 
clearly before I get through. 

Mr. FORAKER. That is a matter of opinion. I have read the 
history of that transaction in Hawaii, and I do not see that there 
was anything done by the representative of the United States in 
Hawaii that ought not to have been done to protect the property 
interests of our citizens and to protect the honor and dignity of 
this country. 

Mr. ALLEN. If the Senator will permit me to say it — it may 
not be very germane, but I have no doubt— I was in the Chamber 
when the revolution took place — that the act of Mr. Stevens was 
absolutely and inexcusably unlawful, and if President Cleveland 
had promptly taken steps to right it and had not waited months 
and months until a change of government took place, I would have 
been one of the Senators who would have supported him. 

Mr. FORAKER. After all that has been said, I say again, as 
I said before, that that is a matter of opinion. 1 have my opinion, 
and I say, having read the history of this transaction, that the 
representatives of the United States, and particularly Mr. Stevens, 
did not do anything in Hawaii with respect to the revolution 
which it was not their duty to do; and the fact that they landed 
the marines there is no more potent objection than when the 

3513 



20 

marines were landed a few years ago, to which I called attention 
a few minutes ago. 

Mr. CAFFERY. This discussion is very interesting. I have 
not heard the whole of it, but I should like to know the Senator's 
position on the matter of the treaty. If I state his position cor- 
rectly, I will follow it with a question. If I do not, the Senator 
will correct me. I think he stated that the Hawaiian Govern- 
ment authorized a tender, made a tender, of the territory of Ha- 
waii; did not absolutely cede it, because they could not do so, but 
made a tender of cession. 

Mr. FORAKER. Pardon me. What I said was this: I said 
the facts as recited in the preamble amounted to an expression of 
a willingness to cede it. 

Mr. CAFFERY. Very well; amounted to a willingness to cede it. 

Mr. FORAKER. To an expression of willingness. 

Mr. CAFFERY. The Senator says when we accept it, when 
we meet that willingness by a joint resolution, that that does not 
amount to a full alienation of the territory of Hawaii to the United 
States; in other words, it is not a contract consummated. 

Mr. FORAKER. Now, the Senator must remember what I 
said about that. I said that was a matter about which I was not 
disposed to raise any contention, but I thought it might be con- 
tended that because they expressed that willingness in the form 
of a treaty, which we had refused to ratify, they might say that 
they were not bound by such action as we are proposing to take, 
by joint resolution, because when they made the offer it was in 
the form of a treaty which we refused to ratify. Whether they 
will regard themselves as bound by this — I have no doubt they 
will — is a matter about which there might be debate. In my 
judgment, it would not be held that this was the end of the trans- 
action, because the proffer was by treaty. But upon that I have 
no disposition to be contentious. I may be in error. 

Mr. CAFFERY. In other words, they made the proposition in 
the form of a treaty, and we accept it in another form. 

Mr. FORAKER, We made a proposition to take them at the 
same time they made a proposition to come. We both acted by 
treaty, and it was in the contemplation of both that we would act 
by treaty. I can understand, if the Senator will allow me to state 
more plainly what is in my mind, how the Republic of Hawaii 
might say, "lam perfectly willing to go in by treaty, as was 
agreed and contemplated and as I expressed a willingness to do, 
but I have some question about this procedure. I have read the 
debates of the distinguished Senator from Tennessee [Mr. Turley] 
and the distinguished Senator from Georgia [Mr. Bacon] and other 
Senators to the effect that it is unconstitutional to take me in in 
this way, and I do not want to go in unconstitutionally. There- 
fore I decline to go in. This is a different road from the one we 
agreed upon. " I have in my mind the thought that they might see 
fit to take some such action as that, if they are not willing to 
come now as they were when we negotiated the treaty, and in 
that event I think they would be free to take such position. 

Mr. CAFFERY. I understand that if the Government of Hawaii 
accepts this joint resolution, it would then amount to a contract. 

Mr. FORAKER. I think it would. 

Mr. CAFFERY. Is that the Senator's contention? 

Mr. FORAKER. It would be an executed contract, certainly, 
and the Government of Hawaii would pass out of existence. So, 
if we ratified the treaty, it would pass out of existence and there 

3513 



21 

would not any longer be a treaty. It would be an executed con- 
tract. There would be no longer two parties to the contract. 

Mr. BACON. I should like to ask the Senator from Ohio a 
question in this connection. If, on the other hand, the Govern- 
ment of Hawaii were to refuse to stand by what it has hereto- 
fore agreed, would not the joint resolution be absolutely null and 
void and of no effect? 

Mr. FORAKER. It is possible. That is what I have said. 

Mr. BACON". There is no possibility about it. Must it not 
necessarily be so? 

Mr. FORAKER. I do not say necessarily. 

Mr. BACON. Unless we are going to enforce it by war, as a 
matter of compulsion. 

Mr. FORAKER. I can explain to the Senator, if he will allow 
me, just what I have in my mind when I say "possible." If the 
view which I suggested as possible to be taken "by Hawaii should 
be taken, that this was not a ratification of the treaty, that she 
had never proposed to come in in this way — if she should take that 
view of it and refuse, it might be construed that she has a right so 
to construe it. So it is one of the debatable propositions, because 
she did not offer to come in by a joint resolution. She offered to 
come in by treaty. If, on the other hand, she should say ' ' I regard 
this as an acceptance," and I think she will, then she will come in. 

Mr. BACON. In other words, the validity of the joint resolu- 
tion must depend at least upon the consent and agreement of 
Hawaii. Is not that necessarily so? 

Mr. FORAKER. Certainly. That is what I have contended all 
the time. 

Mr. CAFFERY. Will the Senator permit me to ask him an- 
other question which I intended to ask? In response to my first 
inquiry he stated that the act of the Government of Hawaii was 
a mere tender, a mere expression of willingness to cede. 

Mr. FORAKER. So the preamble recites. 

Mr. CAFFERY. Then, if we accept by joint resolution the 
offer of willingness to cede, does that make anything more than 
an executory contract? 

Mr. FORAKER. I say that is one of the debatable proposi- 
tions. It is not necessary for me to pass upon it. I have called 
attention to the fact that I think there might be controversy over 
that. There is room there for argument as to what the construc- 
tion should be. It is not necessary that I should settle it. What 
I am endeavoring to establish is that, according to my view, we 
may constitutionally accept the islands by legislative act. 

Mr. WHITE. Before my friend the Senator from Ohio leaves 
the floor, if I am not interrupting him, and I feel that I have in- 
terrupted him several times, I should like to know whether he 
pays any attention to the thirty-second article of the Hawaiian 
constitution. 

Mr. FORAKER. I have called attention to it. 

Mr. WHITE. I should like to know whether he thinks that 
the general- welfare clause of the Hawaiian constitution covers all 
the omitted authority with reference to a grant of that Republic. 

Mr. FORAKER. I have called attention to it already," and I 
will say to the Senator that I think we can afford to dismiss it by 
saying that is Hawaii's part of the business. 

Mr. WHITE. If we are making a contract with a nation. I sup- 
pose the ability of the nation to contract is of some materiality. 
It is to me, although it seems it is not to the distinguished Sena- 
tor from Ohio. 

3TA\i 



22 

Mr. FORAKER. No; the Senator from California does rne in- 
justice when he imputes that I have no regard for the ability of 
Hawaii to contract. What I had in mind — I did not mean to be 
discourteous— in my answer to the Senator was that that is the 
constitutional provision. They have in making the treaty acted 
in conformity with the requirements of that provision. The 
Senator from California so contends, I believe. 

Mr. WHITE. I do not. I say there has been no treaty made. 

Mr. FORAKER. I know; in proposing the treaty, then. There 
is no contract. 

Mr. WHITE. They have taken one step. 

Mr. FORAKER. I know. In proposing that they have acted 
in conformity with the Constitution. If we should ratify the 
treaty and they should ratify it — I believe they have ratified it — 
there would be a treaty, and they would have acted in conformity 
with that provision of the Constitution. Now, then, how they will 
act when the joint resolution is passed I do not know. That is 
something to be hereafter dealt with. What I meant to say to 
the Senator was that it has no relation to the question I am argu- 
ing, of the constitutional power of Congress to accept the territory. 

Mr. WHITE. I feel, as the Senator from Ohio is a member of 
the Committee on Foreign Relations and the only member of 
the committee who has thus far ventured any defense of what I 
consider to be a very preposterous proposition 

Mr. FORAKER. Let me say to the Senator that he does the 
Foreign Relations Committee a very great injustice when he 
makes that remark. The Senator from California must remem- 
ber, and it ought to be made to appear in the Record, that we 
considered the treaty for months in executive session, and in ex- 
ecutive session this whole subject was most elaborately and 
exhaustively discussed by the friends as well as the opponents of 
annexation. 

Mr. WHITE. And having been so discussed, the distinguished 
Senator comes here admitting the justness of criticisms made 
upon the phraseology of this long-entertained resolution, and ex- 
presses doubt as to whether the measure, which was thus long 
considered and reported after great deliberation, was in reality 
the proper method of procedure. 

Mr. FORAKER. The Senator from California is unwarranted 
in his statement that I admit that there is ground for criticism of 
the language employed. The fact that I might not have employed 
the word "cession " is not equivalent to criticising it. I contend 
that it is a perfectly appropriate word when considered in the 
light of the context, as it should be considered. There can not 
be any question as to what is meant by the word "cession," be- 
cause it says the "said cession." 

Mr. WHITE. What the preamble says is very little said, as we 
know in usual matters of legislation. The word "cession" has a 
well-defined meaning, admitted by the Senator from Ohio to be in 
accordance with the definition given to it by myself and other 
Senators upon this side of the Chamber. That resolution is now 
before the Senate. It is not a case where we are considering some- 
thing done and attempting to find out the meaning of a legislative 
body which has passed a law, but we are now framing a law con- 
taining an admitted ambiguity which there is no suggestion to 
correct. 

Mr. FORAKER. So the word 

Mr. WHITE. Certainly. 

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23 

Mr. FORAKER. If you use it with respect to personal prop- 
erty and the context shows it, every court would say it has refer- 
ence to the passing of personal property and interpret it accord- 
ingly. 

I am much obliged to the Senator from Tennessee [Mr. Tl t r- 
leyJ. 

Mr. WHITE. I wish to thank the Senator from Ohio for his 
liberality to me in the matter of interruption. 

Mr. CLAY. Will the Senator from Ohio permit me to ask him 
a question? 

Mr. FORAKER. I have an engagement to be at the depot at 
3.45, and it is now 3.30. 

Mr. CLAY. Just one minute. I understood the Senator to 
state on the floor of the Senate that it was absolutely necessary 
to acquire the Louisiana purchase by treaty from the simple fact 
that there were continuing rights to be enforced by the United 
States to the people occupying that territory. If the Senator 
takes that position, is not the case now pending before us a simi- 
lar one? If we adopt the joint resolution, are there not continued 
rights due from us to the people of that island? Is it not true that 
the argument which he has applied to the purchase of Louisiana 
would apply in this case? 

Mr. FORAKER. Not at all. The case of Louisiana affords 
ground for the broad distinction which I have been making. The 
French owned Louisiana and they ceded it to the United States. 
The French Government continued in existence. They ceded it, 
not merely for a sum of money, but upon certain stipulated con- 
ditions as to the rights of the occupants and inhabitants of the 
country, which conditions continued into the future. Therefore, 
I say it was a case where a contract was made and the contract 
did not perish when it was consummated, because both parties 
continued to exist afterwards as before. But here the distinction 
is that the minute you consummate the contract the Republic of 
Hawaii falls to the ground, and there can not be such a thing as 
a contract without parties. 

Mr. PETTIGREW. There are conditions in the treaty which 
we have to carry out. 

Mr. FORAKER. To pay money. 

Mr. PETTIGREW. We assume a debt. 

Mr. FORAKER. We assume to pay a debt, and the very mo- 
ment that the treaty is ratified, if it should be, the people of the 
Republic of Hawaii become citizens of the United States, become 
our subjects, pass under the dominion of our law, and the Gov- 
ernment of the Republic of Hawaii passes out of existence. 

Mr. PETTIGREW. The only distinction is that there is no 
country in existence that can punish us for breach of contract. 

Mr. FORAKER. The only distinction is that there is not any 
contract where there are not two parties. 

Mr. PETTIGREW. There are two parties when the contract 
is made. 

Mr. FORAKER. Certainly; and the contract was consum- 
mated when it was made. That is all the distinction there need be. 

Mr. PETTIGREW'. Its terms do not carry consummation when 
made. 

Mr. FORAKER. It is not a question of good faith. We are 
talking about the constitutional power— whether of necessity this 
must be done by treaty, and I say no. 

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